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Rule 31 of Chapter 4, para F, of the High Court Rules and Orders, read with clause 26 of the Letters Patent. - the Division Bench of the High Court, consisting of the then Chief Justice and a puisne Judge, by two separate but concurring orders disposed of the writ petition cancelling the allotment of land and directing the Union Territory of Chandigarh to take necessary corrective steps in the matter in consonance with the constitutional philosophy of Article 14 of the Constitution of India and further directed the Union Territory of Chandigarh to take policy decision for allotment of educational institutional sites in favour of eligible persons so as to ensure that the allotments are made objectively and in a transparent manner. After delivering the separate concurring orders, however, the puisne Judge, on the post judgment script, specified that there was no agreement on certain paragraph Nos. 10, 12, 13, 14 and 15 of the order passed by the then Chief Justice.- challenged & filed Letters Patent, urging that the matter be referred to another Bench or the full Bench for adjudication on the points of difference. -The learned nominated Judge of the High Court disposed of the Civil Misc. Application Nos. 5016 of 2005 and Civil Misc. No. 6173 of 2005 vide order dated 26.4.2006, - held that Thus, there appears to be absolutely no point of difference or divergence between the then Chief justice and the companion puisne Judge, who have issued directions to the Administration of the Union Territory of Chandigarh. - Apex court held that We thus hold that the impugned order passed by the learned puisne Judge, which was concurred by the then Chief Justice by his separate order and the order of the third nominated Judge holding that there is no difference of opinion in the orders of the Division Bench are legal and valid and do not require any interference by this Court.=CIVIL APPEAL NO.2143 OF 2007 INSTITUTE OF LAW & ORS. ….APPELLANTS Vs- NEERAJ SHARMA & ORS. …RESPONDENTS = 2014 - Sept. Month - http://judis.nic.in/supremecourt/imgst.aspx?filename=41938

 Rule  31  of Chapter 4, para F, of the High Court Rules and Orders, read with  clause  26
of the Letters Patent. - the Division Bench of the High Court, consisting of  the then Chief Justice and a  puisne  Judge,  by  two  separate  but  concurring orders disposed of the writ petition cancelling  the allotment of  land  and directing the Union Territory of Chandigarh  to  take  necessary  corrective steps in the matter in consonance  with  the  constitutional  philosophy  of Article 14 of the Constitution of  India  and  further  directed  the  Union Territory  of  Chandigarh  to  take  policy  decision   for   allotment   of educational institutional sites in favour  of  eligible  persons  so  as  to ensure that the  allotments  are  made  objectively  and  in  a  transparent manner. After  delivering  the  separate  concurring  orders,  however,  the puisne Judge, on the post judgment script,  specified   that  there  was  no agreement on certain paragraph Nos. 10, 12, 13,  14  and  15  of  the  order passed by the then Chief Justice.- challenged & filed Letters Patent, urging that the matter be referred to another  Bench  or the full Bench for adjudication on the points of difference. -The learned nominated Judge of the High Court disposed  of  the  Civil Misc. Application Nos. 5016 of 2005 and Civil Misc. No. 6173  of  2005  vide order dated 26.4.2006, - held that Thus, there appears to be  absolutely  no  point  of difference or divergence between the then Chief justice  and  the  companion puisne Judge, who have issued directions to the Administration of the  Union Territory of Chandigarh. - Apex court held that We thus hold that the impugned order passed by  the  learned  puisne Judge, which was concurred by the then Chief Justice by his  separate  order and the order of  the  third  nominated  Judge  holding  that  there  is  no
difference of opinion in the orders of the  Division  Bench  are  legal  and valid and do not require any interference by this Court.=

The  appellant-Institute  of  law  was  allotted  the  land  measuring
28,376.23 sq. yards (5.75 acres) in Sector 38-A in the  Union  Territory  of
Chandigarh at the rate of Rs.900/- per sq. yard  by  the  administration  of
Union Territory of  Chandigarh.
The  rate  was  fixed  by  the  Chandigarh
Administration vide its Notification No. 31/1/100-UTFI  (4-2002/1823)  dated
7.3.2002 issued under the Punjab Development  Regulation  Act,  1952  fixing
the land rates for  allotment  to  educational  institutions  in  the  Union
Territory of Chandigarh.
The allotment  of  land  was  made   in  favour  of
appellant-Institute for 99 years on lease  hold  basis  with  the  condition
that the initial lease period will be 33 years and renewable  for  two  like
periods only if the lessee continues to fulfil all conditions of allotment. =

3.    The respondent No.1, Neeraj Sharma, filed a Writ Petition  No.6916  of
2004 before the High Court of Punjab and Haryana at  Chandigarh  questioning
the legality and validity of the allotment of land  involved  in  this  case
urging various grounds.=
On 14.2.2005, the Division Bench of the High Court, consisting of  the
then Chief Justice and a  puisne  Judge,  by  two  separate  but  concurring
orders disposed of the writ petition cancelling  the allotment of  land  and
directing the Union Territory of Chandigarh  to  take  necessary  corrective
steps in the matter in consonance  with  the  constitutional  philosophy  of
Article 14 of the Constitution of  India  and  further  directed  the  Union
Territory  of  Chandigarh  to  take  policy  decision   for   allotment   of
educational institutional sites in favour  of  eligible  persons  so  as  to
ensure that the  allotments  are  made  objectively  and  in  a  transparent
manner. After  delivering  the  separate  concurring  orders,  however,  the
puisne Judge, on the post judgment script,  specified   that  there  was  no
agreement on certain paragraph Nos. 10, 12, 13,  14  and  15  of  the  order
passed by the then Chief Justice.=
 Aggrieved by the orders, the appellants filed the  applications  being
Civil Misc. No. 5016 of 2005 and Civil Misc. No. 6173 of 2005 under Rule  31
of Chapter 4(F) of the High Court Rules and Orders read with  Clause  26  of
the Letters Patent, urging that the matter be referred to another  Bench  or
the full Bench for adjudication on the points of difference.=
The learned nominated Judge of the High Court disposed  of  the  Civil
Misc. Application Nos. 5016 of 2005 and Civil Misc. No. 6173  of  2005  vide
order dated 26.4.2006,

We now come to the opinion expressed by the then  Chief  justice  in
his order which was concurred by  the  nominated  Judge  hearing  the  Civil
Misc. Applications that although different reasons  have  been  recorded  by
the members of the Division Bench in their order who have  disposed  of  CWP
No.6916 of 2004, the conclusion arrived at by them was the same.
Therefore,
the order passed by the then Chief Justice cannot be said to  have  rendered
a different opinion so as  to  attract  the  applicability  of  Rule  31  of
Chapter 4, para F, of the High Court Rules and Orders, read with  clause  26
of the Letters Patent.

35.    A perusal of the directions contained  in  the  orders  of  the  High
Court reveals a common effect, i.e. the allotment of the institutional  plot
made in favour of the appellant-Institute stands cancelled  as  it  did  not
conform to the constitutional philosophy enshrined  in  Article  14  of  the
Constitution of India.
This was  also  conceded  by  the  learned  nominated
Judge of the High Court hearing the Civil Misc. No.5016 of  2005  and  Civil
Misc. No. 6173 of 2005.=
 It  was  further  held
that both the  orders reveal a common object i.e. the  cancellation  of  the
allotment of land made in favour of  the  appellant-Institute.  The  learned
Judge  has  further  clarified  that  a  process  of  auction  by  necessary
implication  requires  invitation  to  all  eligible  prospective  allottees
through public notice which will be in conformity  with  the  constitutional
philosophy under Article 14 of the Constitution of India.  Having  clarified
in the aforesaid terms, the learned Judge dismissed both the applications.
Thus, there appears to be  absolutely  no  point  of
difference or divergence between the then Chief justice  and  the  companion
puisne Judge, who have issued directions to the Administration of the  Union
Territory of Chandigarh. 
It has rightly been pointed out  by  the  nominated
Judge that there may apparently seem to  be  a  difference  in  the  thought
process and also the relative rigour of the expressions  used  by  both  the
learned Judges, yet, it has not been possible to  conclude  that  there  was
any divergence in the directions recorded in their separate views.

36.     We thus hold that the impugned order passed by  the  learned  puisne
Judge, which was concurred by the then Chief Justice by his  separate  order
and the order of  the  third  nominated  Judge  holding  that  there  is  no
difference of opinion in the orders of the  Division  Bench  are  legal  and
valid and do not require any interference by this Court.

37.     It is needless to  state  that  certain  observations  made  in  the
impugned orders against some of  the  appellants  and  the  respondents  are
totally unwarranted and the same are expunged.
38.     In view of the foregoing reasons, we  do  not  find  any  reason  to
interfere with the impugned orders in exercise  of  this  Court’s  appellate
jurisdiction.  The  appeal  is  accordingly  dismissed.  The   order   dated
16.04.2007 granting stay shall stand vacated.

2014 - Sept. Month - http://judis.nic.in/supremecourt/imgst.aspx?filename=41938

|REPORTABLE       |




                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.2143 OF 2007



INSTITUTE OF LAW & ORS.                    ….APPELLANTS


                                 Vs-
NEERAJ SHARMA & ORS.                      …RESPONDENTS







                               J U D G M E N T




V. GOPALA GOWDA, J.

 This appeal is directed against the  two  separate  impugned  orders  dated
14.2.2005 passed in Civil Writ  Petition  No.  6916  of  2004  by  both  the
members of the Division Bench of the High  Court  of  Punjab  &  Haryana  at
Chandigarh and against the order dated 26.04.2006 passed in Civil Misc.  No.
5016 of 2005 and Civil Misc. No. 6173 of 2005. The brief facts of  the  case
are stated hereunder:-

2.    The  appellant-Institute  of  law  was  allotted  the  land  measuring
28,376.23 sq. yards (5.75 acres) in Sector 38-A in the  Union  Territory  of
Chandigarh at the rate of Rs.900/- per sq. yard  by  the  administration  of
Union Territory of  Chandigarh.   The  rate  was  fixed  by  the  Chandigarh
Administration vide its Notification No. 31/1/100-UTFI  (4-2002/1823)  dated
7.3.2002 issued under the Punjab Development  Regulation  Act,  1952  fixing
the land rates for  allotment  to  educational  institutions  in  the  Union
Territory of Chandigarh. The allotment  of  land  was  made   in  favour  of
appellant-Institute for 99 years on lease  hold  basis  with  the  condition
that the initial lease period will be 33 years and renewable  for  two  like
periods only if the lessee continues to fulfil all conditions of allotment.

3.    The respondent No.1, Neeraj Sharma, filed a Writ Petition  No.6916  of
2004 before the High Court of Punjab and Haryana at  Chandigarh  questioning
the legality and validity of the allotment of land  involved  in  this  case
urging various grounds.

4.    On 14.2.2005, the Division Bench of the High Court, consisting of  the
then Chief Justice and a  puisne  Judge,  by  two  separate  but  concurring
orders disposed of the writ petition cancelling  the allotment of  land  and
directing the Union Territory of Chandigarh  to  take  necessary  corrective
steps in the matter in consonance  with  the  constitutional  philosophy  of
Article 14 of the Constitution of  India  and  further  directed  the  Union
Territory  of  Chandigarh  to  take  policy  decision   for   allotment   of
educational institutional sites in favour  of  eligible  persons  so  as  to
ensure that the  allotments  are  made  objectively  and  in  a  transparent
manner. After  delivering  the  separate  concurring  orders,  however,  the
puisne Judge, on the post judgment script,  specified   that  there  was  no
agreement on certain paragraph Nos. 10, 12, 13,  14  and  15  of  the  order
passed by the then Chief Justice.

5.    Aggrieved by the orders, the appellants filed the  applications  being
Civil Misc. No. 5016 of 2005 and Civil Misc. No. 6173 of 2005 under Rule  31
of Chapter 4(F) of the High Court Rules and Orders read with  Clause  26  of
the Letters Patent, urging that the matter be referred to another  Bench  or
the full Bench for adjudication on the points of difference.

6.    The learned nominated Judge of the High Court disposed  of  the  Civil
Misc. Application Nos. 5016 of 2005 and Civil Misc. No. 6173  of  2005  vide
order dated 26.4.2006,  holding  that  there  was  no  point  of  difference
between the Judges of the Division Bench on the question of  maintainability
of the writ petition and the locus standi of the  writ  petitioner.  It  was
held by him that although  different  reasons  have  been  recorded  by  the
members of the Division Bench, the conclusion recorded by them on the  issue
of maintainability of the writ petition was the same. It  was  further  held
that both the  orders reveal a common object i.e. the  cancellation  of  the
allotment of land made in favour of  the  appellant-Institute.  The  learned
Judge  has  further  clarified  that  a  process  of  auction  by  necessary
implication  requires  invitation  to  all  eligible  prospective  allottees
through public notice which will be in conformity  with  the  constitutional
philosophy under Article 14 of the Constitution of India.  Having  clarified
in the aforesaid terms, the learned Judge dismissed both the applications.

7.     The  correctness  of  both  the  separate   orders  dated  14.02.2005
delivered by the Division  Bench  and  the  order  dated  26.4.2006  of  the
learned nominated Judge hearing Civil Misc. Nos. 5016 and 6173 of  2005  are
under challenge in this appeal filed  by  the  appellant-Institute,  raising
certain substantial questions of law.

8.    It was contended by Mr. Nidhesh Gupta, the learned senior counsel  for
the appellant-Institute that the learned nominated Judge has  erred  in  not
appreciating the separate orders passed by the two  learned  Judges  of  the
Division Bench of the High Court,  who  have  given  separate  and  distinct
orders, which are absolutely conflicting in nature and  had  no  commonality
at all. The learned Judge has failed  to  appreciate  that  even  the  ‘post
judgment script’, one of  the  learned  judge  has  clearly  spelt  out  the
differences of opinion between the two learned  Judges  and  on  this  basis
alone the matter ought to have been referred to a larger bench.

9.    It was further contended that the High Court  ought  to  have  noticed
that the land involved in this appeal had been allotted  to  the  appellant-
Institute after proper scrutiny and on the published and notified  rates  of
the land with a condition for specific utilization  of  the  land  on  lease
hold basis and that none of the town planning was affected by the  allotment
of land in question in favour of the appellant-Institute since the  area  of
land in question is situated in the  institutional  area  where  educational
institutions are functioning.

10.   It was further contended that the High Court has gravely erred in  not
dismissing the writ petition on the basis of lack of  locus  standi  of  the
writ petitioner who has filed the writ petition for  personal  interest  for
the reason  that  a  residential  site  was  not  allotted  to  him  by  the
Administration of Union Territory of Chandigarh.

11.   The High Court has further erred in holding that  the  appellants  are
influential persons, therefore, the land was allotted to them,  although  no
basis whatsoever has been shown in the impugned judgments.

12.   The High Court has erred in not appreciating  that  the  allotment  of
land in favour of the appellant-Institute was made as per regular  procedure
adopted  and  being  followed  by  Administration  of  Union  Territory   of
Chandigarh for the last more than  50  years  and  there  was  no  deviation
whatsoever from the said procedure in allotting the land in  favour  of  the
appellant-Institute which is also non-profitable institute.

13.   It is further  contended  that  the  land  is  not  auctioned  by  the
Chandigarh  Administration   but   it   has   allotted   it   to   qualified
persons/institutions on the basis of the social and economic  needs  of  the
city and society. Further,  the  allotment  of  land  for  the  purposes  of
establishing educational institutions has restrictions on  the  transfer  as
well as usage and therefore, it is different from  the  general  land  rates
(viz. commercial and residential) which have no such  restrictions  and  are
freely marketable.

14.   It is submitted that the land was allotted  with  certain  conditions,
(a) on leasehold basis initially for 33 years (b) non transferable  directly
or indirectly and (c) usage was  only  for  law  institute.  The  appellant-
Institute deposited 25% of the  lease  amount  with  the  administration  of
Union Territory where upon the  letter  of  allotment  dated  22.01.2004  in
respect of the land in question was  issued  in  favour  of  the  appellant-
Institute.

15.   It is further submitted by the learned senior counsel  that  the  writ
petition dubbed as a Public Interest Litigation filed by the respondent  No.
1 is frivolous, malicious and illegal as it does not disclose the source  of
information.

16.   On the other hand, it is contended by the learned  counsel  on  behalf
of the first respondent that the respondent is  a  dedicated  social  worker
having deep concern for the laws of land.

17.   It is further contented that the appellants have managed  to  get  the
allotment of land which is contrary to the policy of the Union Territory  of
Chandigarh, the laws laid down by this Court in relation to  the  management
of public property and is in the teeth of Article 14 of the Constitution  of
India.

18.   The respondents have further contended that the said  allotted  land’s
market value is worth more than Rs.50/- crores but, was granted  by  way  of
lease to the appellant-Institute for  an  amount  of  Rs.2.55  crores  only,
which amounts to conferring largesse upon them which is not  permissible  in
law and has caused huge loss to the public exchequer.

19.   It has  been  further  contended  that  according  to  the  rules  for
allotment of land in favour of schools and other  educational  institutions,
no land can be allotted  to  any  institute  without  an  advertisement  and
inviting applications from the eligible persons.

20.   On the basis of the aforesaid rival legal contentions urged on  behalf
of  both  the  parties,  the  following   points   would   arise   for   our
consideration:

Whether the writ petition filed in the public interest  is  maintainable  or
not and whether the writ petitioner  has  locus  standi  to  file  the  writ
petition?

Whether the separate but concurring orders passed by the Division  Bench  of
the High Court which were concurred by the nominated third Judge  are  legal
and valid or whether the same requires interference by this Court?

Whether the allotment order  of  land  made  in  favour  of  the  appellant-
Institute is in violation of Article 14 of the Constitution of  India  along
with  the  applicability  of  the  “Allotment   of   land   to   Educational
Institutions (Schools),Rules  etc.  on  a  Lease-hold  basis  in  Chandigarh
Scheme, 1996”?

What Order?

Answer to Point No.1

21.    We will first consider and answer the question of maintainability  of
the Writ Petition and locus standi of the writ  petitioner,  the  respondent
No. 1 herein who has filed the writ petition.

22.     The  property  in  question  belongs  to  the  Union  Territory   of
Chandigarh Administration. Under our  constitutional  philosophy,  it  is  a
public property and therefore, belongs  to  the  people.  Hence,  the  Union
Territory of Chandigarh Administration is the  trustee  of  the  land  whose
duty is to see that the property is allotted in favour of  eligible  persons
by following the procedure laid down by the Chandigarh  Administration,  and
the same should not be allowed to be squandered or sold  away  by  it  at  a
throw away price as it has been done in the instant case as pointed  out  by
its Audit Department itself that there is  a  clear  loss  of  about  Rs.139
crores to the public exchequer.

23.   It has also come to our notice that the  settlement  of  the  land  in
question in favour of the appellant-Institute was done  within  a  few  days
without following the mandatory procedure for the allotment of land.  We  do
not doubt the intention of the appellants  to  set  up  the  law  institute,
however, their private interest is pitted against the public  interest.  The
loss to the public exchequer could have been easily avoided had the land  in
question been settled by way of public auction  inviting  applications  from
eligible persons.

24.   Further, as stated in the writ petition, the petitioner is a  resident
of State of Punjab and is also an Income Tax  Payee.  It  has  neither  been
shown nor proved by the appellants that he is a  (i)  meddlesome  interloper
(ii) that he is acting under malafide intention or (iii) that  he  has  been
set  up  by  someone  for  settling  his  personal  scores  with  Chandigarh
Administration or the allottee. Dealing with the question  of  locus  standi
of the writ petitioner, we would like to refer to certain decisions of  this
Court to hold that the writ petition filed by  the  first  respondent  is  a
public interest litigation to  protect  public  interest.  In  the  case  of
Fertilizer Corporation Kamgar Union (Regd.)  Sindri  &  Ors.   v.  Union  of
India & Ors.[1], the constitutional Bench of this Court has held as under:-
“29-30. ……Where does the citizen stand, in the context of the  democracy  of
judicial remedies, absent an ombudsman? In the  face  of  (rare,  yet  real)
misuse of administrative power to play ducks  and  drakes  with  the  public
exchequer, especially where  developmental  expansion  necessarily  involves
astronomical expenditure and concomitant corruption, do public bodies  enjoy
immunity from  challenge  save  through  the  post-mortem  of  parliamentary
organs. What is the role of [pic]the judicial process, read in the light  of
the dynamics of legal control and corporate autonomy?

    XXX       XXX             XXX

47. ……Nevertheless, the broad  parameters  of  fairness  in  administration,
bona fides in action, and the fundamental rules of reasonable management  of
public business, if breached, will become justiciable.

48. If a citizen is no more than a wayfarer or officious intervener  without
any interest or concern beyond what belongs to any one of  the  660  million
people of this country, the door of the court will  not  be  ajar  for  him.
But, if he belongs to an organisation which  has  special  interest  in  the
subject-matter, if he has some concern deeper than that of  a  busybody,  he
cannot be told off at the gates, although whether the issue  raised  by  him
is justiciable may still remain to be considered.  I,  therefore,  take  the
view that the present petition would clearly  have  been  permissible  under
Article 226.”
                                             (emphasis supplied)

Similarly, in the case of S.P. Gupta  v. Union of India  and  Anr.[2],  this
Court has categorically laid down the law in relation to  locus  standi   as
under :-
“18……whenever there is a public wrong or public injury caused by an  act  or
omission of the State or  a  public  authority  which  is  contrary  to  the
Constitution or the law, any member of  the  public  acting  bona  fide  and
having sufficient interest can maintain an  action  for  redressal  of  such
public wrong or public injury. The strict rule  of  standing  which  insists
that only a person who has suffered a specific legal injury can maintain  an
action for judicial redress is relaxed and a broad  rule  is  evolved  which
gives standing to any member of the public who is not a mere busy body or  a
meddlesome interloper but who has sufficient  interest  in  the  proceeding.
There can be no doubt that the risk of legal action against the State  or  a
public authority by any  citizen  will  induce  the  State  or  such  public
authority to act with greater responsibility and care thereby improving  the
administration of justice……It is also necessary to point out that if no  one
can have standing to maintain an action for judicial redress in  respect  of
a public wrong or public injury, not only will the cause of legality  suffer
but the people not having any judicial remedy to redress such  public  wrong
or public injury may turn to the street and in that  process,  the  rule  of
law will be seriously impaired….

19. There is also another reason why the Rule of locus standi  needs  to  be
liberalised. Today we find that law is being increasingly used as  a  device
of organised social action for the purpose of bringing about  socio-economic
change. The task of national reconstruction upon which we  are  engaged  has
brought about enormous increase  in  developmental  activities  and  law  is
being utilised for the purpose of development, social and  economic.  It  is
creating more and more a new category of rights in favour of large  sections
of people and imposing a new category of duties on the State and the  public
officials with a view to reaching social justice to  the  common  man…….  In
other words, the duty is one which is  not  correlative  to  any  individual
rights. Now if breach of such public duty were  allowed  to  go  unredressed
because there is no one who has received a specific legal injury or who  was
entitled to participate  in  the  proceedings  pertaining  to  the  decision
relating to such public duty, the failure to perform such public duty  would
go unchecked and it would promote disrespect for the rule of law.  It  would
also open the door for corruption and inefficiency because  there  would  be
no check on exercise of public power except what  may  be  provided  by  the
political machinery, which at best would be able to exercise only a  limited
control and at worst, might become a  participant  in  misuse  or  abuse  of
power. It would also make the new social  collective  rights  and  interests
created  for  the  benefit  of  the  deprived  sections  of  the   community
meaningless and ineffectual.

20. ………If public duties are to be enforced and social collective  “diffused”
rights and interests are to be protected, we have to utilise the  initiative
and zeal of public-minded persons and  organisations  by  allowing  them  to
move the court and act for a general or group interest,  even  though,  they
may not be directly injured in their own rights. It is for this reason  that
in public interest litigation — litigation undertaken  for  the  purpose  of
redressing  public  injury,  enforcing  public  duty,   protecting   social,
collective, “diffused” rights and interests or vindicating public  interest,
any citizen who is acting bona fide and who has sufficient interest  has  to
be accorded standing. What is sufficient interest  to  give  standing  to  a
member of the public would have to  be  determined  by  the  court  in  each
individual case. It is not possible for the court to lay down any  hard  and
fast rule or any  straitjacket  formula  for  the  purpose  of  defining  or
delimiting “sufficient interest”. It has  necessarily  to  be  left  to  the
discretion of the court………

  XXX            XXX           XXX

23. We  would,  therefore,  hold  that  any  member  of  the  public  having
sufficient interest can maintain an action for judicial redress  for  public
injury arising from  breach  of  public  duty  or  from  violation  of  some
provision of the Constitution or  the  law  and  seek  enforcement  of  such
public duty and observance of such constitutional or legal provision……”
                                                         (Emphasis supplied)


Further, in the case of Dattaraj Nathuji Thaware v. State of  Maharashtra  &
Ors.[3], this Court held that Public Interest Litigation is a  weapon  which
has to be used with great care and circumspection.  It has to be used as  an
effective weapon in the armoury of law  for  delivering  social  justice  to
citizens. The aim  of  Public  Interest  Litigation  should  be  to  redress
genuine public wrong or public injury.

25.    It is clear to us that the respondent No. 1-the writ  petitioner  has
filed a bonafide writ petition and he has the necessary locus. There  is  an
apparent favour shown by the Union Territory of Chandigarh in favour of  the
appellant-Institute which is a profit making company and it  has  not  shown
to this Court that the allotment of land in  its  favour  is  in  accordance
with law. Hence, we are of the view that there is a strong  reason  to  hold
that the writ petition is maintainable in  public  interest.  We  completely
agree with the views taken by the High Court, wherein it  has  rightly  held
that the writ petition is a Public Interest Litigation  and  not  a  Private
Interest Litigation. The writ petition in question  is  the  first  petition
filed by the first respondent and his first endeavor to knock the  doors  of
the constitutional court to protect the public interest by  issuing  a  writ
of certiorary.

26.    The appellants have miserably failed to show the  malafide  intention
on the part of the respondent No. 1 in filing writ  petition  and  we  agree
with the view of the then Chief Justice in his order who has  held  that  he
is a public spirited person. The  cause  ventilated  by  him  is  definitely
worth consideration and the record of  the  AAO  (Audit)  submitted  to  the
Chandigarh Administration proves the allegations made by him. Further it  is
observed that His  Excellency,  the  Governor  of  Punjab-cum-Administrator,
Chandigarh has rightly come to the  conclusion  in  his  decision  that  the
impugned allotment of  land  in  favour  of  the  first  appellant-Institute
requires taking up of corrective steps.  The  Administration  of  the  Union
Territory of Chandigarh has conferred largesse  on  the  appellant-Institute
by allotting  land  in  its  favour  for  inadequate  consideration  without
following procedure.  Therefore, we hold that the  writ  petition  filed  by
the first respondent is  maintainable  as  the  allotment  of  the  land  in
question made in favour  of  the  first  appellant-Institute  is  arbitrary,
illegal and the same is in violation of Article 14 of the Constitution.

Answer to Point Nos. 2, 3 and 4


27.   We  have  carefully  considered  and  examined  the  question  of  the
legality of the allotment order of the land made in favour of the appellant-
Institute. It is submitted  on behalf  of  the  first  respondent  that  the
allotment of public land at throw away price or at no price to  the  private
educational institutions with an avowed object to serve the public  interest
is contrary to the theory of “charitable education”  that  serve  the  pious
cause of literacy. The aforementioned legal issue  was  visualized  by  this
Court and has lucidly laid down the law in the case  of  Union  of  India  &
Anr. v. Jain Sabha, New  Delhi&  Anr.[4]  wherein  the  plea  of  charitable
intentions  or  philanthropic  goal  behind  the  establishment  of  private
educational institution was not accepted by this Court, holding that :-

“11……we think it appropriate to observe that it is high time the  Government
reviews the entire policy relating to  allotment  of  land  to  schools  and
other charitable institutions. Where the public property is being  given  to
such  institutions  practically  free,  stringent  conditions  have  to   be
attached with respect to the user of  the  land  and  the  manner  in  which
schools or  other  institutions  established  thereon  shall  function.  The
conditions imposed should be consistent  with  public  interest  and  should
always stipulate that in case of violation of any of those  conditions,  the
land shall be resumed by the Government. Not only such conditions should  be
stipulated but constant monitoring should  be  done  to  ensure  that  those
conditions are being observed in practice.  While  we  cannot  say  anything
about the particular school run by the respondent, it  is  common  knowledge
that some of the schools are being run on  totally  commercial  lines.  Huge
amounts are being charged by way of donations  and  fees.  The  question  is
whether there is any justification for allotting land at  throw-away  prices
to such institutions. The allotment of  land  belonging  to  the  people  at
practically no price is meant for serving the public interest, i.e.,  spread
of education or other charitable purposes; it is not  meant  to  enable  the
allottees to make money or profiteer with the aid  of  public  property.  We
are sure that the Government would take necessary measures  in  this  behalf
in the light of the observations contained herein.”


28.   Further, in another case, this Court set aside the allotments of  land
made by the allotment committee  even  though  most  of  the  allottees  had
constructed  the  buildings,  because,  the  allotment  Committee  had   not
followed any rational or reasonable criteria for inviting  the  applications
for the allotment of land through an open advertisement. Reliance is  placed
on the decision of this Court in New India Public School & Ors. v. HUDA  and
Ors.[5], which states as under:-
“4………Therefore, the  public  authorities  are  required  to  make  necessary
specific regulations or valid guidelines  to  exercise  their  discretionary
powers; otherwise, the salutary procedure would be by  public  auction.  The
Division Bench, therefore, has rightly pointed out that in  the  absence  of
such statutory regulations exercise of discretionary power  to  allot  sites
to private institutions or persons was not correct in law.”


29.   Further, we have to refer to  the  case  of  Akhil  Bhartiya  Upbhokta
Congress v. State of M.P. & Ors.[6], wherein this Court has succinctly  laid
down the law after considering catena of cases of this Court with regard  to
allotment of public property as under :
“50. For achieving the  goals  of  justice  and  equality  set  out  in  the
Preamble, the State and  its  agencies/instrumentalities  have  to  function
through  political  entities  and        officers/officials   at   different
levels. The laws enacted by Parliament and  the  State  Legislatures  bestow
upon them powers for  effective  implementation  of  the  laws  enacted  for
creation of an egalitarian society.  The  exercise  of  power  by  political
entities  and  officers/officials  for  [pic]providing  different  kinds  of
services and benefits to the people always has  an  element  of  discretion,
which is required to be used  in  larger  public  interest  and  for  public
good……In our constitutional  structure,  no  functionary  of  the  State  or
public authority has an absolute or unfettered discretion. The very idea  of
unfettered discretion is totally incompatible with the doctrine of  equality
enshrined in the Constitution and is an antithesis to  the  concept  of  the
rule of law.

             XXX        XXX          XXX

54. In Breen v. Amalgamated Engg. Union, Lord Denning MR said: (QB  p.  190,
B-C)

‘… The discretion  of  a  statutory  body  is  never  unfettered.  It  is  a
discretion which is to be exercised according to law. That  means  at  least
this: the statutory body must be guided by relevant considerations  and  not
by irrelevant. If its decision is influenced  by  extraneous  considerations
which it ought not to have taken into  account,  then  the  decision  cannot
stand. No matter that the statutory body  may  have  acted  in  good  faith;
nevertheless the  decision  will  be  set  aside.  That  is  established  by
Padfield v. Minister of Agriculture, Fisheries and Food which is a  landmark
in modern administrative law.’

55. In Laker  Airways  Ltd.  v.  Deptt.  of  Trade  Lord  Denning  discussed
prerogative  of  the  Minister  to  give  directions   to   Civil   Aviation
Authorities overruling the specific provisions in the statute  in  the  time
of war and said: (QB p. 705, F-G)

‘Seeing that the prerogative is a discretionary power to  be  exercised  for
the public good, it follows that its exercise can be examined by the  courts
just as any other discretionary power which is vested in the executive.’

56. This Court has long ago discarded the theory of  unfettered  discretion.
In S.G. Jaisinghani  v.  Union  of  India,  Ramaswami,  J.  emphasised  that
[pic]absence of arbitrary power is the foundation of a  system  governed  by
rule of law and observed: (AIR p. 1434, para 14)

‘14. In this context it is  important  to  emphasise  that  the  absence  of
arbitrary power is the first essential of the rule of  law  upon  which  our
whole constitutional system is based. In a system governed by rule  of  law,
discretion, when conferred upon  executive  authorities,  must  be  confined
within clearly defined limits. The rule of  law  from  this  point  of  view
means that decisions should be made by the application of  known  principles
and rules and, in general, such decisions  should  be  predictable  and  the
citizen should know where  he  is.  If  a  decision  is  taken  without  any
principle or without any rule it is unpredictable and  such  a  decision  is
the antithesis of a decision taken in accordance with the rule of law……..’

   XXX        XXX          XXX

59. In Kasturi Lal Lakshmi Reddy v. State of J&K, Bhagwati J.  speaking  for
the Court observed: (SCC pp. 13-14, para 14)

‘14.  Where  any  governmental  action  fails  to  satisfy   the   test   of
reasonableness and public interest  discussed  above  and  is  found  to  be
wanting in the quality of  reasonableness  or  lacking  in  the  element  of
public interest, it would be liable to be struck down as invalid……….’

61. The Court also referred to the reasons recorded in the orders passed  by
the Minister for award of dealership of petrol pumps and  gas  agencies  and
observed: (Common Cause case, SCC p. 554, para 24)

‘24. … While  Article  14  permits  a  reasonable  classification  having  a
rational nexus to the objective sought to be achieved, it  does  not  permit
the power to pick and choose arbitrarily out of several persons  falling  in
the same category. A transparent and objective criteria/procedure has to  be
evolved so that the choice among the members belonging to the same class  or
category is  based  on  reason,  fair  play  and  non-arbitrariness.  It  is
essential to lay down as a matter of policy as to how preferences  would  be
assigned between two persons falling in the same category….’

62. In  Shrilekha  Vidyarthi  v.  State  of  U.P.  the  Court  unequivocally
rejected the argument based on the theory  of  absolute  discretion  of  the
administrative authorities  and  immunity  of  their  action  from  judicial
review and observed: (SCC pp. 236, 239-40)

‘29. It can no longer be doubted at this point of time that  Article  14  of
the Constitution of India applies also to  matters  of  governmental  policy
and if the policy or any action  of  the  Government,  even  in  contractual
matters,  fails  to  satisfy  the  test  of  reasonableness,  it  would   be
unconstitutional…….”

In the light of the above mentioned cases, we have  to  record  our  finding
that the discretionary power conferred upon the public authorities to  carry
out the  necessary  Regulations  for  allotting  land  for  the  purpose  of
constructing a public educational institution should not be misused.

30.   We further hold that the fundamental right to  establish  and  run  an
educational institution in terms of Article 19 (1)(g)  of  the  Constitution
is  subject  to  reasonable  restrictions  under  Article   19(6)   of   the
Constitution of India. Therefore, the State  is  within  its  competence  to
prohibit “commercialization of education”.

31.   In Modern School v. Union of India and Others[7] (supra),  this  Court
has held thus :-
“72. So far as allotment of land  by  the  Delhi  Development  Authority  is
concerned, suffice it to point out that the  same  has  no  bearing  on  the
enforcement of the provisions of the Act and  the  Rules  framed  thereunder
but indisputably the institutions are bound by the terms and  conditions  of
allotment. In the event such terms and conditions  of  allotment  have  been
violated by the allottees, the appropriate statutory  authorities  would  be
at liberty to take appropriate step as is permissible in law.”


32.    We,  therefore,  disregard  the  plea  of  charitable  intention   or
philanthropic goal behind the establishment  of  the  appellant  educational
institution as the establishment of the  same  does  not  serve  any  public
interest and we cannot allow the allottee to make money  or  profiteer  with
the aid of the public property.

33.     Further, on a careful evaluation  of  the  statutory  object  behind
clause  18  of  the  “Allotment  of   Land   to   Educational   Institutions
(Schools)Rules Etc. on Lease Hold  basis  in  Chandigarh  Scheme,  1996”  no
systematic exercise has been undertaken by the Administration of  Chandigarh
to identify the  needs  of  different  kinds  of  professional  institutions
required to be established in Chandigarh. We thus concur with the  reasoning
of the High Court in  the  impugned  orders  that  the  Screening  Committee
comprising  of   senior   and   responsible   functionaries   allotted   the
institutional  sites  in  favour  of  the  allottee  without  following  any
objective criteria and policy. The Screening Committee  acted  in  a  manner
which is contrary  to  the  principles  laid  down  by  this  Court  in  the
judgments cited above in allotting the land in question  in  favour  of  the
first appellant. We, therefore, conclude that the  High  Court  has  rightly
held that the policy followed by the  Chandigarh  Administration  where  the
allotment of land was done in  favour  of  the  appellant-Institute  without
giving any public notice and in the absence of a  transparent  policy  based
upon objective criteria and without even examining the fact that  the  Union
Territory  of  Chandigarh  is  already  under  extreme  pressure   of   over
population and even in the case of allotment of school sites  by  making  no
attempt to enforce clause 18 of the  Scheme,  1996,  thereby  confining  the
said provision merely to the statute book, is  arbitrary,  unreasonable  and
unjust and is opposed to the provisions of Article 14  of  the  Constitution
of India.

34.     We now come to the opinion expressed by the then  Chief  justice  in
his order which was concurred by  the  nominated  Judge  hearing  the  Civil
Misc. Applications that although different reasons  have  been  recorded  by
the members of the Division Bench in their order who have  disposed  of  CWP
No.6916 of 2004, the conclusion arrived at by them was the same.  Therefore,
the order passed by the then Chief Justice cannot be said to  have  rendered
a different opinion so as  to  attract  the  applicability  of  Rule  31  of
Chapter 4, para F, of the High Court Rules and Orders, read with  clause  26
of the Letters Patent.

35.    A perusal of the directions contained  in  the  orders  of  the  High
Court reveals a common effect, i.e. the allotment of the institutional  plot
made in favour of the appellant-Institute stands cancelled  as  it  did  not
conform to the constitutional philosophy enshrined  in  Article  14  of  the
Constitution of India. This was  also  conceded  by  the  learned  nominated
Judge of the High Court hearing the Civil Misc. No.5016 of  2005  and  Civil
Misc. No. 6173 of 2005. Thus, there appears to be  absolutely  no  point  of
difference or divergence between the then Chief justice  and  the  companion
puisne Judge, who have issued directions to the Administration of the  Union
Territory of Chandigarh. It has rightly been pointed out  by  the  nominated
Judge that there may apparently seem to  be  a  difference  in  the  thought
process and also the relative rigour of the expressions  used  by  both  the
learned Judges, yet, it has not been possible to  conclude  that  there  was
any divergence in the directions recorded in their separate views.

36.     We thus hold that the impugned order passed by  the  learned  puisne
Judge, which was concurred by the then Chief Justice by his  separate  order
and the order of  the  third  nominated  Judge  holding  that  there  is  no
difference of opinion in the orders of the  Division  Bench  are  legal  and
valid and do not require any interference by this Court.
37.     It is needless to  state  that  certain  observations  made  in  the
impugned orders against some of  the  appellants  and  the  respondents  are
totally unwarranted and the same are expunged.
38.     In view of the foregoing reasons, we  do  not  find  any  reason  to
interfere with the impugned orders in exercise  of  this  Court’s  appellate
jurisdiction.  The  appeal  is  accordingly  dismissed.  The   order   dated
16.04.2007 granting stay shall stand vacated.

                                               ………………………………………………………………………J.
                            [SUDHANSU JYOTI MUKHOPADHAYA]

                                               ………………………………………………………………………J.
                          [V. GOPALA GOWDA]
New Delhi,
September 19, 2014
-----------------------
[1]    AIR 1981 SC 344,  (1981) 1 SCC 568
[2]    (1981) Supp SCC 87
[3]   ( 2005)   1  SCC 590
[4]   (1997)  1  SCC 164
[5]    (1996)  5 SCC 510
[6]    (2011)  5 SCC 29
[7]    (2004) 5 SCC 583

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